KIMBERLY E. GRINDSTAFF APPELLANT
JOSEPH D. STRICKLAND AND MINOR CHILDREN APPELLEES
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-14-386]
HONORABLE DOUG SCHRANTZ, JUDGE
Law Firm, by: Johnnie Emberton Rhoads, for appellant.
Miller, Butler, Schneider & Pawlik, PLLC, by: Mason L.
Boling, for appellee.
W. GRUBER, CHIEF JUDGE.
Strickland (now Grindstaff) and Joseph Strickland were
divorced by order of the Circuit Court of Benton County on
April 9, 2014. Ms. Grindstaff was granted custody of the two
minor children, who were then six years old and ten months
old. Mr. Strickland was given standard visitation and was
ordered to pay child support, and the parties agreed to
jointly decide "matters concerning the children: medical
decisions, school and extracurricular activities." The
order also included a non-cohabitation clause that stated in
part, "Neither party . . . shall allow any third parties
to co-habit in their residence or place of lodging while the
child(ren) is present." Under an agreed order entered by
the court on November 6, 2015, Ms. Grindstaff retained
primary custody and was allowed to live in Springdale in the
same residence with her new husband. The order specified
details for visitation exchanges in Springdale and Siloam
Springs, where she had previously lived.
Strickland subsequently filed a petition for modification of
custody, contempt, and reinstatement of the attorney ad
litem. His petition included the following allegations of a
material change in circumstances: (a) alienation by Ms.
Grindstaff; (b) failure to permit Mr. Strickland's
Father's Day visit in 2016; (c) failure to inform him of
school activities; (d) requiring the school to notify her if
he visited the minor children; (e) informing the school that
he was not permitted to check out the children; (f) failure
to list him as "father" on school paperwork; (g)
suggesting that he "sign over his rights to the
children"; (h) sending the children to their
stepfather's automotive shop without proper care and
permitting them to accompany him on repossessions and towing
at accident scenes; and (i) residing in a home with as many
as eight people, including an unmarried couple. The petition
asked that Ms. Grindstaff be found in contempt for violations
of court orders, which included failing to remove Mr.
Strickland's name from car registration and to transfer
insurance coverage pursuant to the divorce decree. Ms.
Grindstaff filed an answer and a counter petition for
contempt. She alleged that Mr. Strickland had failed to
properly communicate with her regarding the children, to
provide health insurance for the children when she lost her
employment, and to provide an environment "conducive for
a conversation" in her telephone visitation with the
children; that he had permitted third parties to consume
alcohol in the children's presence; and that he was
$315.28 behind in child support.
conclusion of the November 30, 2016 hearing on the petitions,
the court orally ruled that the "cumulative effect"
of the evidence constituted cause for an immediate change of
custody. On the same date, the court entered a written order
granting Mr. Strickland the immediate change of custody,
eliminating the previous order's provision that the
parties would jointly decide specific matters regarding the
children, and setting child support and visitation for Ms.
Grindstaff. The court found her in contempt, ordered her to
pay attorney's fees and costs, and dismissed the contempt
action against Mr. Strickland, finding that any contemptuous
actions on his part had been "de minimis."
Grindstaff now appeals. She contends that the trial court
erred (1) in finding a material change of circumstances, (2)
in finding that a change of custody was in the best interest
of the children, and (3) in changing custody before using
contempt powers to correct her contemptuous behavior. We
judicial award of custody will not be modified unless it is
shown that there are changed conditions demonstrating that a
modification of the decree will be in the best interest of
the child, or when there is a showing of facts affecting the
best interest of the child that were either not presented to,
or not known by, the trial court when the original custody
order was entered. Campbell, 336 Ark. at 383-84, 985
S.W.2d at 727. Generally, to promote stability and continuity
in the life of the child and to discourage repeated
litigation of issues that have already been decided, courts
impose more stringent standards for modifications in custody
than they do for initial determinations of custody.
Id. at 384, 985 S.W.2d at 727. The party seeking
modification has the burden of showing a material change in
review child-custody cases de novo, but we will not reverse a
trial court's findings unless they are clearly erroneous.
Taylor v. Taylor, 353 Ark. 69, 77, 110 S.W.3d 731,
735 (2003). Because the question of whether the trial
court's findings are clearly erroneous turns largely on
the credibility of the witnesses, we give special deference
to the superior position of the trial court to evaluate the
witnesses, their testimony, and the child's best
interest. Sharp v. Keeler, 99 Ark.App. 42, 44, 256
S.W.3d 528, 529 (2007). There are no cases in which the
superior position, ability, and opportunity of the trial
court to observe the parties carry as great a weight as those
involving minor children. Neumann v. Smith, 2016
Ark.App. 14, at 12, 480 S.W.3d 197, 204. If the trial court
fails to make findings of fact about a change in
circumstances, we may nonetheless conclude on de novo review
that there was sufficient evidence from which the trial court
could have found a change of circumstances. Williams v.
Geren, 2015 Ark.App. 197, at 10, 458 S.W.3d 759, 766. We
do so in this case.
Whether the Trial Court Erred in Finding a Material
Change of Circumstances
Grindstaff first contends that the trial court erred in
finding a material change of circumstances. She complains
that the court "stated that it was the cumulative effect
of the following actions on [her] part" that led the
court to change custody: (1) asking Mr. Strickland to allow
her husband to be present at one meeting with the parties and
the children; (2) an inadequate job of notifying Mr.
Strickland of the children's activities; (3) miserable
communication between the parties; (4) one occasion of asking
Mr. Strickland if he wanted to relinquish his parental
rights; (5) refusing to give Mr. Strickland the business
address of her husband's auto repair shop, where the
children spent time; (6) admitting that the parties were
making joint decisions almost 100 percent of the time; (7)
cohabitation of a couple in her residence; and (8)
incorrectly filling out school-registration forms. She relies
on evidence at the November 2016 hearing that she asserts was
in her favor on these points.
first point, Ms. Grindstaff points to her testimony about
"a single occurrence" when she had suggested that
she, Mr. Strickland, and the children "talk about the
future" following the November 2015 order-a meeting that
did not happen because of the presence of her new husband.
She explains that she had wanted his attendance, as well as
that of Mr. Strickland's new wife, because "all four
have responsibilities with the children." Next, she
notes Mr. Strickland's testimony that he had not been
notified of a dental appointment, where one of the children
got a silver tooth, and that he had missed a field trip
because of her failure to notify him. She states that she was
working on her communication and that Mr. Strickland had
acknowledged the recent improvement. She complains that a
particular text from him was "as rude and
disrespectful" as the ones that he complained about from
her. She also argues that residing with the cohabitating
couple, her father-in-law and Diane McGraw, is not a material
change in circumstances because she had been residing with
them at the time of the previous order and because Mr.
Strickland had not objected then. She points to her and Ms.
McGraw's undisputed testimony that at the time of the
previous custody order, Ms. Grindstaff had married and moved
to Springdale with her husband, and she and the children
"were residing in the home of a 70-year-old unmarried
Strickland responds that there was conflicting testimony on
the points listed by Ms. Grindstaff and that the trial court
properly identified a number of factors showing a material
change in circumstances. He argues that the crux of these
factors was that Ms. Grindstaff had done a "miserable
job" communicating ...